"Alternative medicine," which is typically defined as any therapy not commonly taught in medical schools or widely available in hospitals, is nevertheless becoming mainstream. Therapies such as acupuncture, chiropractic, homeopathy, biofeedback and massage therapies, that were once considered suspect, if not outright charlatanry, are now commonplace. Even more exotic practices, such as spiritual healing or visits to Chinese medicine masters, are popular with some persons, and as a trip to any pharmacy or grocery store will confirm, vitamins, health foods, and herbal supplements abound.

According to a recent study, four out of ten Americans used some kind of alternative therapy in 1997, with 629 million visits to alternative practitioners, as opposed to 386 million visits to primary care physicians.¹ And they were willing to pay for the privilege; the astounding sum of $21.2 billion was spent on alternative remedies and visits to alternative practitioners in 1997, most of which was unreimbursed by insurance.²

Not only are members of the public flocking to unconventional practitioners in record numbers, but certain types of alternative therapies, such as acupuncture, have also received the endorsement of the National Institutes of Health. Hospitals nationwide are establishing departments for complementary and alternative medicine, and medical schools are including courses in alternative medicine in their curricula. As of 1996, alternative medicine courses were offered in at least 27 United States medical schools.³ A recent course offered by Harvard Medical School, for example, was entitled "Alternative Medicine: Implications for Clinical Practice and Research." The stated objective of the course was to provide physicians with sufficient knowledge and management skills to offer responsible advice to patients who use or frequent alternative medical therapies.⁴ Even the American Medical Association, long a bastion of conservatism where non-conventional treatments are concerned, recently devoted an entire edition of its prestigious Journal to alternative medicine.⁵

From the sheer numbers alone, it seems that an increase in malpractice claims against practitioners of alternative medicine is inevitable. Indeed, physicians who offer unconventional therapies may be particularly vulnerable to malpractice claims, since in many cases the patients who seek them out are advanced cancer patients or others suffering from conditions which are not amenable to orthodox therapies. Such patients often have unrealistic expectations of what the unconventional treatment can offer, and when it fails, the natural impulse is to blame the physician. The patients may conclude that conventional treatment would have been better after all and that therefore, the alternative physician was negligent for not encouraging it.

Alternative physicians may also be the targets of punitive damage claims. An alternative treatment, by definition, does not represent "accepted" practice as defined by conventional medicine, and alternative physicians have long experienced bias, and indeed outright hostility, from orthodox physicians. Accordingly, it may be a relatively easy matter to find conventional physicians willing to testify not only that an alternative physician departed from accepted practice, but that his treatment so far exceeded the bounds of what is acceptable that it was "wanton" or "reckless," so as to support a claim for punitive damages.

For these reasons, defending an alternative physician will require different strategies than in the typical medical malpractice case. Conventional concepts of medical malpractice, such as the traditional "locality" rule and the standard of "good and accepted practice" do not necessarily provide an appropriate basis for judging an alternative physician, unless "good and accepted practice" can be established by another practitioner of the same therapy. If, however, a standard of "and accepted practice" as defined by conventional physicians is used, an alternative physician, particularly one whose practice is unique or innovative, will almost always be found liable, and the only defensible issues will be causation and damages. Therefore, different paradigms must be developed to apply to these cases.

Fortunately, state and federal legislation enacted to encourage the development of effective alternative therapies, and existing tort concepts of "reasonableness", do suggest potential strategies for defending these cases. Passage of the legislative provisions was prompted, in part, by a legislative recognition that alternative physicians can rarely, if ever, be judged fairly by conventional physicians. Thus, the policy concerns underlying such legislation support the use of a general "reasonableness" standard of care, rather than the narrower "accepted practice" standard, where the alternative practitioner does not belong to any particular "school" that could define accepted practice. Use of the reasonableness standard, in turn, would permit the jury to focus on the true issue in the case: not whether what the alternative physician conformed to accepted practice, but whether it was "unreasonable" when compared to the conventional treatment.

1. See, Boom in Alternatives, New York Newsday, November 11, 1998; Maier, Tradition vs. Trend, New York Newsday, November 17, 1998, p. C6.
2. Tradition vs. Trend, op. cit.
3. American Cancer Society, "Alternative and Complimentary Cancer Therapies," Dr. Barrie R. Cassileth and Christopher C. Chapman, 1996.
4. Harvard Medical School Course Catalog: 1995-1996, p. 143.
5. JAMA, November 11, 1998, Vol. 280, no. 18.